Punjab-Haryana High Court
Shavinder Kaur vs Akashdeep on 11 July, 2022
122
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CM-7899-CII-2022 in/and
CR-2500-2022 (O&M)
Date of Decision: July 11, 2022
Shavinder Kaur
...Petitioner
AND
Akashdeep
...Respondent
CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI
Present: Mr.Shubham Goyal Advocate
for the petitioner.
Mr.Piyush Setia, Advocate
for the respondent.
****
ARCHANA PURI, J.
CM-7899-CII-2022
The present application has been filed for placing on record
copies of statements of Shavinder Kaur and Akashdeep dated 11.04.2022 as
Annexures P-4 and P-5.
In view of the averments made in the application, the same is
allowed and statements of Shavinder Kaur and Akashdeep are taken on
record.
CR-2500-2022
Challenge in the present revision petition is to the order dated
23.05.2022 (Annexure P-3), passed by learned Principal Judge, Family
Court, Ferozepur, whereby the joint application (Annexure P-2) filed by the
parties for waiver of the statutory period of six months for recording the
statements of second motion, has been declined.
1 of 7
The material facts of the case are as follows:-
That marriage between parties i.e. Shavinder Kaur and
Akashdeep was solemnized on 10.10.2016. After marriage, they lived
together in the matrimonial house and one girl child, namely Vani was born
on 16.05.2018. However, due to temperamental differences, they could not
pull well with each other and they are residing separate since 24.06.2019.
Considering the broken status of their marriage, they filed petition under
Section 13B of the Hindu Marriage Act on 11.04.2022. On that very day,
the statements of first motion were recorded and case was further adjourned
to 17.10.2022, for recording of the statements of second motion. However,
during the pendency of the petition, a joint application was filed by both
Shavinder Kaur and Akashdeep, thereby seeking waiver of statutory wait of
six months.
Vide impugned order dated 23.05.2022, the above-said
application for seeking waiver of statutory wait of six months, was
dismissed.
Feeling aggrieved by the above-said order, the present petition
has been filed by petitioner-wife Shavinder Kaur. However, in pursuance of
notice issued, respondent-husband Akashdeep also made appearance
through counsel.
Now, both the counsel for Shavinder Kaur and Akashdeep have
submitted in unison that, due to temperamental incompatibility, they could
not live together and they are residing separate since 24.06.2019.
Considering the broken status of the marriage, divorce petition by mutual
consent has been filed. All terms of separation have been duly complied
between them. Out of the settled amount of Rs.8 lakh, Rs.4 lakh had been
2 of 7
paid to the petitioner-Shavinder Kaur by respondent-Akashdeep, at the time
of recording of statements of first motion and the residue amount of Rs.4
lakh is to be paid at the time of recording of statements of second motion.
Besides the same, they have also agreed to seek appropriate remedy qua the
withdrawal/quashing of the various rounds of litigation, pending between
them i.e. application under Section 125 Cr.P.C., petition under Section 13 of
the Hindu Marriage Act, one complaint under SC/ST Act and also, petition
under Section 9 of the Hindu Marriage Act, filed by respondent-Akashdeep.
It is submitted that parties are living separate since 24.06.2019
and all efforts made to save their marriage, proved futile. All terms of
separation, by and large, have been complied with. They have also
submitted that marriage between the parties has irretrievably broken and
there are chances of re-settlement of both petitioner as well as respondent.
As such, it is submitted that six months' waiting period be waived off.
In Amardeep Singh vs. Harveen Kuar, 2017 (8) SCC 746, the
Hon'ble Supreme Court has held as under:-
"19. Applying the above to the present situation, we are of the
view that where the court dealing with a matter is satisfied that
a case is made out to waive the statutory period under Section
13-B (2), it can do so after considering the following:
(i) The statutory period of six months specified in Section 13-B
(2), in addition to the statutory period of one year under
Section 13B(1) of separation of parties is already over before
the first motion itself;
(ii) All efforts for mediation/conciliation including efforts in
terms of Order 32A Rule 3 CPC/Section 23(2) of the
Act/Section 9 of the Family Courts Act to reunite the parties
have failed and there is no likelihood of success in that
direction by any further efforts;
(iii) The parties have genuinely settled their differences
including alimony, custody of child or any other pending issues
between the parties;
3 of 7
(iv) The waiting period will only prolong their agony.
The waiver application can be filed one week after the first
motion giving reasons for the prayer for waiver. If the above
conditions are satisfied, the waiver of the waiting period for
the second motion will be in the discretion of the court
concerned.
20. Since we are of the view that the period mentioned in
Section 13B(2) is not mandatory but directory, it will be open
to the court to exercise its discretion in the facts and
circumstances of each case where there is no possibility of
parties resuming cohabitation and there are chances of
alternative rehabilitation."
In Amit Kumar vs. Suman Beniwal, 2022(1) RCR (Civil) 569,
the Hon'ble Apex Court has held that factors mentioned in Amardeep Singh
vs. Harveen Kaur (supra), are illustrative and not exhaustive. It was held
as herein given:-
"21. The factors mentioned in Amardeep Singh v. Harveen
Kaur (supra), in Paragraph 19 are illustrative and not
exhaustive. These are factors which the Court is obliged to
take note of. If all the four conditions mentioned above are
fulfilled, the Court would necessarily have to exercise its
discretion to waive the statutory waiting period under Section
13B (2) of the Marriage Act.
22. The Family Court, as well as the High Court, have
misconstrued the judgment of this Court in Amardeep Singh v.
Harveen Kaur (supra) and proceeded on the basis that this
Court has held that the conditions specified in paragraph 19 of
the said judgment, quoted hereinabove, are mandatory and
that the statutory waiting period of six months under Section
13B (2) can only be waived if all the aforesaid conditions are
fulfilled, including, in particular, the condition of separation of
at least one and half year before making the motion for decree
of divorce.
23. It is well settled that a judgment is a precedent for the issue
of law that is raised and decided. A judgment is not to be read
in the manner of a statute and construed with pedantic rigidity.
In Amardeep Singh v. Harveen Kaur (supra), this Court held
that the statutory waiting period of at least six months
mentioned in Section 13B (2) of the Hindu Marriage Act was
4 of 7
not mandatory but directory and that it would be open to the
Court to exercise its discretion to waive the requirement of
Section 13B(2), having regard to the facts and circumstances
of the case, if there was no possibility of reconciliation
between the spouses, and the waiting period would serve no
purpose except to prolong their agony."
Further, in the same case, further it was observed as herein
given:-
"27. For exercise of the discretion to waive the statutory
waiting period of six months for moving the motion for divorce
under Section 13B (2) of the Hindu Marriage Act, the Court
would consider the following amongst other factors:
(i) the length of time for which the parties had been married;
(ii) how long the parties had stayed together as husband and
wife;
(iii) the length of time the parties had been staying apart;
(iv) the length of time for which the litigation had been
pending;
(v) whether there were any other proceedings between the
parties;
(vi) whether there was any possibility of reconciliation;
(vii) whether there were any children born out of the wedlock;
(viii) whether the parties had freely, of their own accord,
without any coercion or pressure, arrived at a genuine
settlement which took care of alimony, if any, maintenance and
custody of children, etc.
28. In this Case, as observed above, the parties are both well-
educated and highly placed government officers. They have
been married for about 15 months. The marriage was a non-
starter. Admittedly, the parties lived together only for three
days, after which they have separated on account of
irreconcilable differences. The parties have lived apart for the
entire period of their marriage except three days. It is jointly
stated by the parties that efforts at reconciliation have failed.
The parties are unwilling to live together as husband and wife.
Even after over 14 months of separation, the parties still want
to go ahead with the divorce. No useful purpose would be
5 of 7
served by making the parties wait, except to prolong their
agony."
Now, adverting to the case in hand, it is pertinent to mention
that statements of the parties of first motion were recorded on 11.04.2022,
copies whereof, have been placed on record as Annexures P-4 and P-5.
Perusal of the same reveals that both petitioner and respondent have
categorically stated that there were sharp and irreconcilable differences
between them regarding taste, habits and temperaments and so they could
not pull on together and they are living separate since 24.06.2019. Further,
they have also stated that their marriage has irretrievably broken down.
Also, they categorically stated that during the interregnum period, they
could not resume cohabitation, considering the broken status and thereupon,
they had filed application for seeking dissolution of the marriage. In the
said statements, they have specifically stated that they have settled all
disputes. The minor child has been decided to live with the mother. Even, a
sum of Rs.8 lakh has been settled between the parties as full and final
settlement, out of which, Rs.4 lakh, had already been paid by the respondent
to the petitioner, by way of cheque and residue amount of Rs.4 lakh, is to be
paid, at the time of recording of the statements of second motion.
Perusal of the statements of the parties to the lis further reveals
that there were bouts of litigation between the parties. Petitioner had filed
an application under Section 125 Cr.P.C., petition under Section 13 of the
Hindu Marriage Act, one complaint under Domestic Violence Act and one
complaint under SC/ST Act. She has also undertaken to file quashing
petition before the Court concerned and give statement in favour of the
respondent, for seeking quashing of the FIR, got registered against the
6 of 7
respondent. Even, respondent had undertaken to withdraw the petition
under Section 9 of the Hindu Marriage Act.
Now, it is submitted by learned counsel for the parties that the
quashing petition has already been filed before this Court and the same is
pending for adjudication.
Thus, it is evident from the statements of both the petitioner
and respondent that matters relating to their separation have already been
settled. They are living separate for the last about 3 years and seemingly,
there are no chances of their living together. All disputes relating to
permanent alimony, dowry etc. have been settled between them and there
are chances of re-settlement of the parties.
Considering the same, no malafide on the part of the parties to
the lis, is evident
In view of the aforesaid circumstances and also considering the
observations made in Amit Kumar's case (supra) by the Hon'ble Supreme
Court, the impugned order dated 23.05.2022 is set aside. The next date
before the Court below is 17.10.2022. In the given circumstances, the
parties are directed to make appearance before the Court below on
28.07.2022 and learned Court below shall prepone the case and record the
statements of the parties of second motion and to decide the petition.
The revision petition stands allowed accordingly.
July 11, 2022 (ARCHANA PURI)
Vgulati JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes
7 of 7
